State v. Sinclair, 148

• Decision Date: 08 May 1975
• Docket Number: No. 148,148
• Citation: 337 A.2d 703,274 Md. 646
• Parties: STATE of Maryland v. Philippe A. SINCLAIR and Sinwellan Corporation.
• Court: Maryland Court of Appeals

Page 646

274 Md. 646

337 A.2d 703

STATE of Maryland v. Philippe A. SINCLAIR and Sinwellan Corporation.

No. 148.

Court of Appeals of Maryland.

May 8, 1975.

George A. Eichhorn, III, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and

Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Paul H. Spiller, Wilmington, Del. (Morton Richard Kimmel, Kimmel, Spiller & Bradley, P.A., Wilmington, Del. and Fred S. London, Baltimore, on the brief), for appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

In December 1972 the appellee Sinwellan Corp. (Sinwellan) employed Franz Hoogland as the general manager of the Great Oak Lodge operated by it near Chestertown, at a salary of $22,500 per year, payable monthly. On May 7, 1973 the appellee, Philippe A. Sinclair (Sinclair), by check No. 699 drawn upon the Peoples Bank of Elkton and countersigned by Mrs. Rena Matthews, officer manager for Sinwellan, issued a corporation check to Hoogland in the amount of $977.50 in payment of the net wages due him for the month of April. When Hoogland deposited the check in his account in the Peoples Bank of Chestertown on May 10, 1973 it was returned to him as dishonored on presentment by reason of being drawn against 'uncollected funds,' i. e. certain checks had been deposited by Sinwellan to cover checks drawn upon its account but because the deposited checks had not yet 'cleared' the bank refused to honer it. Apparently this check was never redeposited and Hoogland conceded it was not left 'for collection.'

On the afternoon of May 20, 1973, following an argument with Sinclair, Hoogland's services were terminated for certain alleged derelictions. On May 21st another check, No. 804, was similarly issued to Hoogland in the amount of $866.76 representing, upon severance, payment for the services rendered by him during the first 20 days in May. When Hoogland presented the second check, on May 22, 1973, at the Peoples Bank of Elkton for payment he was there informed that the check could not be paid because 'we do not have the money here,' or 'there were uncollected funds in the account.' When the check was returned to Hoogland the cashier affixed a slip to it indicating that it was 'returned unpaid' due to 'uncollected funds.' Similarly, this second check was never redeposited or left with the bank for collection. Later that same day Sinclair caused a telegram to be sent on behalf of Sinwellan advising Hoogland, at his residence then in Lodi, New Jersey, that 'Inventory shortages have become substantial enough to warrant previous (sic) action on our part. Payment stopped on checks 699 and 804 pending completed inventory.'

As a result of the dishonor of both checks the State's Attorney for Kent County on August 29, 1973 filed a criminal information (No. 2136) ¹ charging Sinclair and Sinwellan, ² alternately and separately, with violation of Maryland Code (1957, 1971 Repl.Vol. (1974 Cum.Supp.)) Art. 27, § 140 (with obtaining from F. L. Hoogland, by false pretenses, 'services'-'of the goods, chattels, moneys and properties' of Hoogland 'with intent to defraud'), and of Art. 27, § 144 (with obtaining 'goods and services' from Hoogland by means of a check with intent, at the time of giving such check, to stop payment). ³

During the course of a jury trial on October 9, 1973, in the Circuit Court for Kent County, presided over by Judge James A. Wise, motions for judgments of acquittal made at the close of the evidence presented by the State on behalf of each of the defendants were granted, pursuant to Maryland Rule 755 b, as to each of the counts which charged them with the crime of false pretenses in violation of Art. 27, § 140. By its verdict the jury acquitted both Sinclair and Sinwellan on both the remaining counts (counts one and two) arising from the issuance of check No. 699 on May 7, 1973, but returned guilty verdicts as to each of the appellees for a violation of Art. 27, § 144, with respect to check No. 804, issued on May 21, 1973. ⁴ Following the denial of motions for new trial and from the judgments entered ⁵ upon the guilty verdicts, Sinclair and Sinwellan seasonably appealed to the Court of Special Appeals. That court, in Sinclair & Sinwellan Corp. v. State, 21 Md.App. 477, 319 A.2d 549 (1974) (Nos. 818 & 817, Sept. Term, 1973), ⁶ in reversing the convictions, after first observing that 'the mischief the statute seeks to remedy is the wrongful obtention of something of value with a negotiable instrument issued by one, who at the time of issuance, intends to stop payment,' pointed out that 'it is implicit that, within the aegis of the crime created by § 144, the dishonor or disregard of the instrument by the drawee must have as its cause a stop order or countermand before the presumption (of intent to defraud) may be used against the maker,' and that '(i)f the dishonor or disregard by drawee is the result of any other cause, no presumption arises that at the time of issuance the maker intended to stop or countermand payment.' (21 Md.App. at 479, 319 A.2d at 550). That court found that the record indicated 'conclusively that the check described in the information was dishonored or disregarded for 'uncollected funds" and that, even though the cashier at the drawee bank had subsequently received a stop payment on the check, his testimony nevertheless clearly indicated that 'the cause of dishonor or disregard of the check . . . was not the stop order or countermand,' so that '(a)s a consequence, the presumption (of an intent to cheat and defraud) was not available to relate the intent to countermand back to the initial issuance of the check'-without which presumption 'the evidence was not sufficient to permit the case to go to the jury.'

It was in this posture of the case that we granted the petition of the Attorney General to issue a writ of certiorari. We shall affirm the result reached by the Court of Special Appeals, but on a more fundamental premise-the inapplicability of the provisions of Art. 27, § 144, to the facts in the case, since the issue was preserved for our review by the appellees' renewed motions for judgments of acquittal under Maryland Rule 755 b, made at the close of all the evidence. That statute, in pertinent part, provides as follows:

'Every person who shall obtain money, credit, goods, wares or anything of value, of the value of one hundred dollars or more, from another by means of a check, draft or any other negotiable instrument of any kind, with intent at the time of giving such instrument without the consent of such other to stop or countermand the payment of the same or otherwise to cause the drawee thereof to disregard or dishonor or refuse to recognize such instrument, shall be deemed to have obtained such money, credit, goods, wares, or other thing of value with intent to cheat and defraud another and upon conviction, shall be fined or imprisoned or both, as provided in § 140 of this article, at the discretion of the court. . . . And upon the trial of any person accused of violation of this section, the fact that such person without the consent of such other to stop or countermand the countermanded payment of such instrument, or otherwise caused the drawee to disregard or dishonor the same without returning or tendering the return of the thing so obtained shall be presumptive evidence of such intent to cheat and defraud. . . .' (Emphasis supplied.)

When what is now § 144 was initially enacted by the General Assembly by Ch. 605 of the Acts of 1920-in substantially the same form as now provided, as to the gravamen of the offense-it complemented what has come to be known as the Worthless Check Act, originally enacted by Ch. 281 of the Acts of 1914 and now codified as Art. 27, § 142. The Worthless Check Act 'in substance provide(d) that money or other things therein named, obtained by the giving of a worthless check or other instrument, as therein stated, shall be deemed to have been obtained by means of false pretenses, where the same was done with the intention to cheat and defraud, and 'the giving of the aforesaid worthless check, draft or negotiable instrument shall be prima facie evidence of intent to cheat or defraud,' subject to the provision' that the drawer shall deposit with the drawee of such paper within ten days thereafter funds sufficient to meet the same. Lyman v. State, 136 Md. 40, 49, 109 A. 548, 552 (1920).

As part of the legislative scheme Ch. 605 of the Acts of 1920 repealed and re-enacted in virtually identical language the provisions of the Worthless Check Act. Each of these sections, as enacted, related to the obtention of 'money, credit, goods, wares or anything of value by means of a check, draft or any other negotiable instrument of any kind . . ..' Under each of these statutes, the issuance of the check, draft or negotiable instrument, under § 142 where the check was returned as worthless and under § 144 after stopping or countermanding payment, is considered to be presumptive evidence of an intent to cheat and defraud.

Both statutes were enacted to supplement the provisions of the False Pretense Act, now codified as Art. 27, § 140, which proscribes the obtaining from any person, by any false pretense, 'any chattel, money or valuable securities' with intent to defraud, and which was first enacted by Ch. 319 of the Acts of 1835.

In a prosecution under the False Pretense Act (§ 140) 'the State must show that there was 'a representation of an existing fact made with intent to defraud, and that the operation of such representation as a deception induced a transfer and the obtaining of the money or property by the person commiting the fraud to the loss of another." (Emphasis supplied.) Marr v. State, 227 Md. 510, 514-15, 177 A.2d 862, 864 (1962); Willis v. State, 205 Md. 118, 123-24, 106 A.2d 85, 87 (1954).

'It was obviously because of the difficulty so frequently...